Friday, January 17, 2014

The Cat, the Sister and the 4th Amendment

After he was “arrested for possession of child
pornography” in violation of federal law, Brian Boyer filed a civil lawsuit
against his sister,

Debora Mohring, and
his Parole Officer, Byron Rice. . . . [Boyer] complains that, without his
permission, his sister unlawfully searched his home and then illegally seized
and searched his cell phone. He also complains that his Parole Officer
unlawfully searched his home and illegally seized the same cell phone, because
he did not obtain a search warrant before taking custody of the phone. Finally,
[he] complains that his Parole Officer illegally searched the phone.

When the Parole Officer searched the phone, he
found child pornography.Boyer v. Mohring, supra. In his Complaint, Boyer claimed that “both
Defendants infringed upon his 4th Amendment rights by conducting an illegal
search and seizure of his property in violation of 42 U.S. Code § 1983.” Boyer v. Mohring, supra.

Mohring and Rice filed motions to dismiss Boyer’s
lawsuit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.Boyer
v. Mohring, supra.As
Wikipedia explains, a Rule 12(b)(6) motion alleges that the plaintiff has
failed to adequately plead a given cause of action, such as intrusion upon
seclusion, in his/her/its Complaint. The motion does not raise any
factual issues; factual issues are to be decided by the jury or by the judge at
a bench trial. To withstand such a challenge, the plaintiff must
allege facts which, if proven at trial, would justify a verdict in his
favor.

In this opinion, the U.S. District Judge who has
the case is ruling on the motions to dismiss. Boyer v. Mohring, supra.He
begins his opinion by outlining the facts that led to the filing of the suit:

In September 2010, [Boyer] was a
parolee under the supervision of Defendant Rice, his Parole Officer. At that
time, [Boyer’s] sister, Mohring, signed what is known as a `Statement of
Residence,’ in which she agreed to provide living quarters for [Boyer]for a minimum of six months when he was
released on parole.

In the `Statement of Residence,’
she agreed to cooperate with parole supervision staff. The `Statement of
Residence’ stated: `I agree to take
a friendly interest in this person as opportunity affords, and I shall
cooperate with parole supervision staff by reporting any irregularities that
may come to my attention.’ According to the Complaint, Rice asked Mohring to
report to him any parole violations by [Boyer]. . . .

During the first week of March
2011, Mohring entered [Boyer’s] residence without permission. She searched the residence and found what she believed
to be child pornography. Mohring reported the suspected child pornography to
Rice. Rice then reported this information to his supervisor, who authorized a
search of [Boyer’s] property pursuant to 61 [Pennsylvania Consolidated Statutes] § 6153(d).

Boyer
v. Mohring, supra.

In the Complaint he filed to initiate this lawsuit,
Boyer stated that

he and Mohring jointly own the
house in which he was living. . . . Mohring lived at a different house on the
same street. . . . [Boyer] also states that he asked Mohring to enter his home
to feed his cat. . . . To do so, [he] gave permission to his landlord to give
Mohring the keys to his house. . . . [Boyer] explains that this permission was
`for the purpose of feeding the cat only,’ and did not require Mohring to enter
his bedroom. . . .

Boyer
v. Mohring, supra.

The judge further explains that on

March 7, 2011, Rice, along with
Mohring and several law enforcement agents, searched [Boyer’s] residence.
Although they did not find child pornography, they took [Boyer] into custody
for various other parole violations. . . . Between March 8 and March 11, 2011,
while [he] was in custody, Mohring entered [Boyer’s] home and seized his cell
phone. . . .

On March 11, 2011, Mohring
contacted Rice to inform him that she had [Boyer’s] cell phone in her
possession, and . . . believed it contained images of child pornography. . . .
Rice then contacted Sergeant Vega, his supervisor, who advised Rice to schedule
a meeting with Mohring so that she could turn over the cell phone to him. . . .
On the same day, Rice met with Mohring and was given custody of [Boyer’s] cell
phone. Rice did not obtain a search warrant prior to receiving the phone. He
then turned the phone over to Detective Vega. . . . Thereafter, Sergeant
McQuate applied for a search warrant to search the cell phone. . . .

Boyer
v. Mohring, supra.

On May 19, 2011, a search warrant
was issued by a Magisterial District Judge based on a violation of 18 Pennsylvania
Consolidates Statutes 6312 (sexual abuse of children), authorizing law
enforcement to search the phone for images of child pornography. While
searching the phone, the police found images of child pornography. . . .

On September 26, 2011, [Boyer]
was arrested and charged with one count of possession of child pornography. . .
. This charge was withdrawn in April 2012, but seventeen additional counts of
possession of child pornography were subsequently filed against [Boyer]. . . .

`A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’ Ethypharm S.A. France v. Abbott Labs, supra. “This
means that our inquiry is normally broken into three parts: (1) identifying the
elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the
complaint and evaluating whether all of the elements identified in part one of
the inquiry are sufficiently alleged.” Malleus v. George, 641
F.3d 560 (U.S. Court of Appeals for the 3d Circuit 2011).

Boyer
v. Mohring, supra.

The judge began with Boyer’s 42 U.S. Code § 1983
claim against Rice, noting that he

contends Rice violated his 4th
Amendment rights when he unlawfully searched [Boyer’] residence and illegally
seized and then searched his cell phone. Rice argues that Plaintiff's claim is
barred by the Supreme Court's decision in Heck v. Humphrey, which
bars actions challenging the basis for a conviction that has not been
overturned. 512 U.S. 477 (1994).

In Heck
v. Humphrey, the Supreme Court held that a plaintiff may not challenge
the validity of his conviction . . . pursuant to § 1983, unless one of the
following exceptions applies. The conviction or sentence must have been either
(1) reversed on direct appeal; (2) expunged by executive order; (3) declared
invalid by a state tribunal authorized to make such determination; or (4)
called into question by a federal court's issuance of a writ of habeas
corpus. Heck v. Humphrey, supra.

Boyer
v. Mohring, supra.

The judge then applied the Heck v. Humphrey standard to this case, noting that Boyer

now challenges the legality of the
underlying search of his home and search and seizure of his cell phone. This
challenge directly attacks the validity of his conviction, which is based on
that search and seizure, and therefore violates Heck v. Humphrey. Unless
[Boyer] can demonstrate that his claim falls under one of the exceptions noted
above, his claim against Rice must be dismissed.

Here, [Boyer’s] conviction has not been
reversed on appeal, expunged by executive order, declared invalid by a state
tribunal or called into question by a federal court's issuance of a writ of
habeas corpus. Therefore, none of the exceptions to the Heck v.
Humphrey rule applies. Accordingly, [Boyer’s] [§ 1983] claim against t
Rice for the illegal search and seizure of his cell phone is barred by Heck
v. Humphrey and will be dismissed.

Boyer
v. Mohring, supra.

The judge also found that Boyer’s § 1983 claim against Rice
failed for another reason:

[Boyer] arranged for Mohring to sign a
`Statement of Residence,’ in which she agreed to provide him with housing upon
his release on parole, and to cooperate with parole supervision staff should
she became aware of any parole violations by [him]. Pursuant to this agreement,
when Mohring suspected [Boyer] was violating his parole, she contacted Rice to
inform him of the potential violation (possession of child pornography). As [Boyer’s]
parole officer, Rice had a duty to investigate the allegations. Based on the
information provided by Mohring, Rice contacted Sergeant Vega, who gave Rice
permission to seize the cell phone from Mohring.

The information provided by Mohring
gave Rice reasonable suspicion to believe [Boyer] was violating his parole and
the authority to seize the cell phone, even without a search warrant. Rice did
not initially search the cell phone after seizing it from Mohring, but instead
turned it over to Sergeant McQuate, who then obtained a search warrant from a
neutral Magisterial District Judge to search the phone.

After a search warrant was issued,
based on facts meeting the probable cause standard, the cell phone was
searched. Thus, Rice not only had reasonable suspicion to seize the cell phone,
but also had probable cause to search it pursuant to a search warrant. For all
these reasons, even when viewing the evidence in the light most favorable to [Boyer],
no plausible 4th Amendment violation under Section 1983 has been
established by [Boyer] against Rice.

Boyer
v. Mohring, supra.

The judge then turned to Boyer’s claim against his
sister, noting that he claimed she

acted under color of state law by
cooperating with Rice, searching his residence, seizing his cell phone, and
viewing its contents, all in violation of 42 U.S. Code § 1983. . . .

To establish a claim under § 1983, a plaintiff
must allege a violation of a constitutional right and must show the alleged
violation was committed by a person acting under color of state law. West
v. Atkins, 487 U.S. 42 (1988). A private actor can be considered a
state actor in one of two ways. `The first category involves an activity that
is significantly encouraged by the state or in which the state acts as a joint participant.’
Dickerson v. DeSimone, Inc., 2011 WL 3273228 (U.S. District Court for the Eastern District of Pennsylvania 2011) (quoting Leshko v.
Servis, 423 F.3d 337 (U.S. Court of Appeals for the 3d Circuit 1984)).
`The second category of cases involves an actor that is controlled by the
state, performs a function delegated by the state, or is entwined with government
policies or management.’ Dickerson v.
DeSimone, Inc., supra.

In order to establish the requisite level of joint
participation and collaboration, a plaintiff must aver the existence of a `pre-arranged plan [between the police and a private entity] by which the
police substituted the judgment of [a] private part[y] for their own official
authority.' Cruz v. Donnelly, 727 F.2d 79 (U.S. Court of Appeals for the 3d Circuit 1984). The 3rd Circuit has noted that `the
critical issue . . . is whether the
state, through its agents or laws, has established a formal procedure or
working relationship that drapes private actors with the power of the state.’ Cruz
v. Donnelly, supra.

Here, Mohring is not a law enforcement
agent or any other kind of state actor. To establish a claim for illegal search
and seizure against Mohring, a private citizen, [Boyer] must show she acted
under color of state law. To do so, [he] must allege plausible facts to show
that Mohring was involved in conspiratorial or concerted action with Rice, a
law enforcement agent. The facts alleged in the Complaint, however, do not
establish that Mohring engaged in any concerted action with Rice.

Boyer
v. Mohring, supra.

As to the latter issue, the judge noted that Boyer

was aware of what the Statement of
Residence required, and he knew that by providing him with housing, Mohring
also agreed to cooperate with parole staff and to report any irregularities to
them. [Boyer] contends Mohring `continuously and recklessly invaded and
maliciously searched [his] personal residence and property without just reason
while reporting results to law enforcement/parole agent Byron Rice for the
purpose of having Plaintiff removed from residence.’ . . .

According to the Complaint, however,
Mohring contacted Rice when she suspected [Boyer] had violated parole, and then
turned [Boyer’s] cell phone over to him because she believed it contained
illegal images. While she may have searched [his] home without his permission
and reported the purported contents on the cell phone to Rice, this does not
rise to the level of concerted action.

Boyer
v. Mohring, supra.

The judge also found Boyer’s allegations that Mohring
had “contacted Rice on several occasions” were insufficient to establish that
there was “a concerted effort or plan between” them.Boyer
v. Mohring, supra.He noted
that simply calling the police, providing information to the police or
communicating with a state actor is not enough to transform a private citizen
into a state actor, which would trigger the provisions of § 1983. Boyer v. Mohring, supra.He therefore held that “[s]ince Mohring is a
private actor accused of conspiring with an immune state official, Mohring
could not be held liable for that state action.” Boyer v. Mohring, supra.

For these and other reasons, the judge granted the
motions to dismiss, which ended Boyer’s lawsuit. Boyer v. Mohring, supra.